Trainor v Police

[2022] NZHC 1022

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-52

[2022] NZHC 1022

BETWEEN

ANDREW STEVEN TRAINOR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 May 2022
Appearances:	T Nicholls for Appellant L Fiennes for Respondent
Judgment:	12 May 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 12 May 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

TRAINOR v POLICE [2022] NZHC 1022 [12 May 2022]

[1]                  Mr Andrew Trainor was sentenced in the District Court at Christchurch to 18 months’ imprisonment on charges of driving while disqualified (third or subsequent), unlawful taking of a motor vehicle, theft of items from a car, assault of a police officer, and refusing a request for a blood specimen.1 Judge Brandts-Giesen granted leave to Mr Trainor to apply to have his sentence commuted to home detention if a suitable address to serve such a sentence became available.

[2]                  Some two months later an address became available, and Judge Duggan granted Mr Trainor’s application to have the sentence commuted.2 In doing so, the Judge stated “you will be able to serve the balance of your sentence, 11 months, on home detention”. Mr Trainor appeals the length of the home detention imposed on the basis the substituted period of 11 months did not adequately take into account the two months he had already served of the prison term imposed by Judge Brandts-Giesen, nor the five months he spent on custodial remand prior to being sentenced.

Analysis

[3]                  The Crown accepts the re-sentencing of Mr Trainor has gone awry. As observed by Ms Fiennes, it is likely the Judge’s reference to the balance of the sentence being 11 months’ was to the remaining period of imprisonment (not the period of home detention that Mr Trainor would have to serve) after deducting the seven months   Mr Trainor had spent in custody. It may well have been the Judge’s expectation that this figure would be converted to home detention by halving the length of the prison term that would otherwise apply, but that was not expressly said.  In any event, as  Ms Fiennes also acknowledged, such an interpretation may still not result in the correct outcome.

[4]                  While the amount of home detention to be substituted for imprisonment is an evaluative exercise,3 ordinarily it involves halving the sentence of imprisonment that would otherwise be served. This reflects that the maximum length of a home detention sentence is limited to 12 months, whereas a short-term sentence of imprisonment which renders an offender eligible for home detention can be as much as two years.

1      New Zealand Police v Trainor [2021] NZDC 24483.

2      Department of Corrections v Trainor [2022] NZDC 3184.

3      R v Bisschop [2008] NZCA 229 at 17; and Ashby v Police [2015] NZHC 1900.

Additionally, a sentencing court is obliged to be cognisant of the time an offender has spent on remand in custody prior to imposing a sentence of home detention.4 Unlike a sentence of imprisonment where credit for time spent on custodial remand is automatically calculated by the Corrections Department, with a sentence of home detention the court itself needs to ensure pre-sentence detention is given recognition.5 However, the approach that has been taken to that exercise has varied.6

[5]                  For the purpose of this appeal, the Crown accepts the approach taken by this Court in Longman v Police should be followed and full credit extended to Mr Trainor.7 In that case Simon France J observed when deducting three months for time spent on remand and electronically monitored bail from a sentence of 10 months’ home detention:

… Here, the analysis is what adjustment should be made to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment, for the time actually spent in jail in effect serving the same sentence. Seen that way, full equivalence should be the norm. Although arising in a different area, I suggest this outcome of full equivalence is consistent with the tenor of the Supreme Court decision in Booth v R where the Court emphasised the need for pre-sentence detention to be applied effectively to all sentences.

(footnote omitted)

[6]                  It follows that when commuting Mr Trainor’s sentence of imprisonment to home detention, the length of his pre-sentence custodial remand and the period of imprisonment already served should be fully taken into account. This amounts to just over seven months in custody.8

[7]                  In Diaz v R, the Court of Appeal held the time spent in custody should effectively be doubled to account for the offender having otherwise been sentenced to

4      Doidge v Police [2021] NZHC 3195 at [21].

5      Longman v Police [2017] NZHC 2928 at [8].

6      For a discussion of varying approaches to the calculation of time spent on custodial remand when imposing a sentence of home detention see Vakapora v Police [2022] NZHC 493.

7      Longman v Police, above n 5, at [9].

8      Mr Trainor spent  four  months  and 22  days  on pre-sentence  remand (from 29 July 2021  to  10 December 2021) and two months and 12 days from 10 December 2021 to his release on home detention on 22 February 2022.

a short term of imprisonment for which they would be eligible for parole after having served half of such a sentence:9

Mr Diaz has already spent six months in custody. An offender who is sentenced to a short term of imprisonment becomes eligible for parole after he or she has served one half of the sentence imposed.^[10] We therefore allow  Mr Diaz a credit of 12 months for the time he has already spent in custody. This would take the sentence to one of 11 months’ imprisonment [the original sentence being one of 23 months’ imprisonment]. Applying the same rationale, an end sentence of 11 months’ imprisonment commutes to a sentence of five months and 15 days home detention and this is the sentence we would impose.

[8]                  Mr Trainor was sentenced to 18 months’ imprisonment. When the Court of Appeal’s approach in Diaz is applied for the purpose of commuting that sentence to one of home detention, Mr Trainor would receive a credit of 14 months for the seven months spent in custody. This would reduce the sentence to one of four months’ imprisonment which in turn equates to a sentence of two months home detention. Alternatively, and to the same effect, the seven months spent in custody could be subtracted from the nine months’ home detention that results from commuting the 18- month prison term to arrive at a final sentence of two months’ home detention.

[9]                  As noted, divergent approaches have been taken by appeal courts to the calculation of credit for time spent in custody when imposing sentences of home detention. In Kidman v R, the Court of Appeal rejected any particular approach.11 The Court held that an evaluative approach is preferable and rejected any mandatory formula. Another Court of Appeal decision, Laloni v R, suggests a less generous approach than Diaz.12 In that case, the Court of Appeal deducted the three months the appellant spent on remand and electronically monitored bail from the term of imprisonment that would otherwise have been imposed. That resulted in a notional sentence of 18 months’ imprisonment and, once converted, an actual sentence of nine months’ home detention. An approach that may well have been the intent of the District Court in this case.

9      Diaz v R [2021] NZCA 426 at [50].

10     Parole Act 2002, ss 20(1) and 86(1).

11     Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.

12     Laloni v R [2015] NZCA 55.

[10]              Referring to the present case, the Crown acknowledges an error occurred in the District Court when commuting the term of 18 months of imprisonment to home detention, and that the appeal must be allowed. Moreover, the position it takes to the recalculation of the sentence involves applying the approach adopted in Diaz. As a result, it accepts the time Mr Trainor has served should result in a substitute sentence of two months’ home detention. The alternative to the Crown’s concession would be to reduce the notional 18-month term of imprisonment by seven months and convert that sentence to one of five months and 15 days’ home detention. However, I consider a comparison between the effective results of these two differing courses illuminating.

[11]              There can be no dispute the 18-month sentence of imprisonment should convert to a sentence of nine months’ home detention. How best then to recognise that Mr Trainor has already been imprisoned for seven months on the charges that are the subject of this appeal? It needs to be borne in mind that the decision to commute the sentence to home detention is not contested, and that home detention has always been considered the appropriate sentence subject to Mr Trainor locating a suitable address to serve the sentence. It follows that from the outset the appropriate sentence was viewed as being nine months’ home detention.

[12]              When assessing the different approaches to recognising time spent in custody, it strikes me that, in the circumstances of this case, seven months’ incarceration and two months’ home detention more accurately reflects the intended sentence of nine months’ home detention than one of seven months’ imprisonment and five and a half months’ home detention. The former result achieves an outcome that is comparable with the intended original sentence. I therefore consider the Crown’s concession, that a substitute sentence of two months’ home detention should be imposed on the appeal, is a proper one and the course I should adopt.

Result

[13]              In order to take into account the seven months Mr Trainor has spent in custody, the sentence of 11 months’ home detention is quashed, and in its place I substitute a sentence of two months’ home detention. The accompanying six months of post-

release conditions remain undisturbed, as  does  the  original  order  disqualifying  Mr Trainor from driving for 15 months.

Solicitors:

Crown Solicitor, Christchurch